"I have often been called a Nazi, and, although it is unfair, I don't let it bother me. I don't let it bother me for one simple reason. No one has ever had a sexual fantasy about being tied to a bed and ravished by a liberal." PJ O'Rourke, Give War a Chance

Tuesday, December 02, 2008

Damian Green continued...

Why am I still unhappy about the Damian Green affair? PaceBob Piper, it is not because he is a Tory, nor because I believe that MPs should always be above the law. But I do have several specific concerns:

1. This was by any measure a very heavy-handed action by the police. Regardless of the official designation of the force involved (reports said anti-terrorist police, they are apparently “counter-terrorist police”. I’m not entirely clear on the difference) sending 20 officers to arrest and search Green’s home and parliamentary and constituency offices is an extremely serious step. It’s very hard to justify on the grounds that Green might do a runner, or destroy evidence - he’s a minister for God’s sake! When Tony Blair was investigated on a criminal matter, he was interviewed at a time of his choosing. Surely a better step would have been to inform Damian Green that, unless he co-operated fully with them, an arrest would take place. Had Green not then co-operated, he would hardly have been able to complain if an arrest did then occur.

Probably the reason he was arrested was so that the search could take place, without having to persuade a magistrate of the merits of the case - under s.18 PACE you can search the premises of an arrested person without a warrant. I don’t entirely like the implications of that.

2. I’m really notaccusing the Labour Government of anything here. I’m actually trying not to turn this into a party political thing. I am, obviously a Tory, but still… But the question of why the Home Office was not informed of this procedure remains a difficult one. The police obviously saw the political implications of this arrest - they told Boris Johnson, one of the Met’s ‘bosses’. They told David Cameron. Why didn’t they tell their other boss? It doesn’t make sense. We can talk about ‘operational independence’ all you like, but that would not have been affected had the police kept the Home Office in the loop on this - after all, when they informed Boris he said, basically, that this looked like a bad idea and they’d better be absolutely sure. But he didn’t stop them did he? What was to stop precisely the same information being passed to the Home Secretary?

3. The offence. The crime that has been alleged is not “breaching the Official Secrets Act” (under s5). Moreover, the OSA relates almost exclusively to security, defence and international relations leaks. It was not designed to cover memos to the Prime Minister about possible future crime levels. Given that, and unless there have been leaks that are national security or defence based leaks, the OSA will not apply.

Interestingly, Unity mentions that the OSAwill be an issue with the Treasury mole. Well, unless the leaks are about national security, defence or international relations, no it won’t. He could leak the whole budget in its entirety and it would probably not contravene the OSA. There’s a reason that the OSA martyrs have been sacrificed for the Belgrano, Trident and cruise missile sites.

4. So what we’re left with is this crime of ‘procuring misconduct in public office’. Well, that’ll be a right sod to prove. I don’t believe that it has ever been proved in court of law in fact. Green was a political journalist and a barrister. I would be surprised, shall we say, if he had left anything resembling a smoking gun here. Nods and winks are not punishable by imprisonment.

5. The protection for whistleblowers Unity refers to here may well not apply in this case. It is clearly not acceptable for the Home Office to employ a politically motivated leaker. So unless the terms of the Act apply, fire him.That’s what that act is for - to protect workers from being sacked if they speak out - not to keep them out of chokey. The reason the police have gone down the ‘misconduct in public office’ line is because, if there is no OSA breach, as there probably isn’t - there is no other crime being committed here. Not by Galley, and certainly not by Green.

6. We don’t live in a police state, Labour doesn’t have a ‘Nu’ before it and Gordon Brown’s middle name is not Gabriel. The sheer political ineptness of the way the police have handled this so far is surely pretty strong evidence that the Government weren’t behind it. Peter Mandelson must be tearing his hair out.

I’m going to try and explain why I think that the principle behind the arrest of Damian Green was also wrong in a constitutional sense (for all that I’ll be disagreeing with Vernon Bogdanor…) later. What I’ve outlined above is what I disagree with in its practice.